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Lottery Trademark Suit Survives Court Test

LITTLE ROCK — A divided state Supreme Court on Thursday declined to toss a Little Rock marketing firm's lawsuit seeking exclusive rights to use certain lottery-related phrases that it copyrighted before Arkansas had a state lottery.

In a 4-3 decision, the high court dismissed the Arkansas Lottery Commission's appeal of a circuit judge's ruling denying the commission's motion for summary judgment in the suit by Alpha Marketing.

The Lottery Commission had argued that it was immune from civil suits, but the Supreme Court said Thursday that Pulaski County Circuit Judge Wendell Griffen had not addressed that issue in his ruling.

Alpha Marketing is seeking a ruling that it has exclusive rights to use the phrases "Arkansas lottery," "Arkansas Lotto" and "Lottery Arkansas," some of which it has had trademarked since 1994. Arkansas did not have a state lottery until 2009.

The company filed the suit after the state attorney general's office warned Ed Dozier, owner of Alpha Marketing, that he would be subject to legal action if he continued to use the terms, which have appeared on items such as novelty T-shirts.

In oral arguments before the Supreme Court in December, a lawyer with the attorney general's office argued that as a state agency, the Lottery Commission has sovereign immunity. An attorney for Alpha Marketing argued that sovereign immunity does not apply because the lottery is run like a for-profit business.

In its majority opinion Thursday, the Supreme Court said it could not consider the immunity issue without a lower-court ruling that specifically addresses it.

"For some undisclosed reason, the circuit court neglected to rule on the issue of sovereign immunity, leaving the question to be decided on another day," Justice Courtney Goodson wrote for the majority.

The Supreme Court dismissed the appeal without prejudice, saying the Lottery Commission could go back to circuit court to obtain a ruling on the immunity issue.

Blake Rutherford, chief of staff for Attorney General Dustin McDaniel, said Thursday the state will request a new order from Griffen that addresses sovereign immunity.

Justices Jim Gunter, Donald Corbin and Paul Danielson joined in the majority opinion.

Chief Justice Jim Hannah and Justices Robert Brown and Karen Baker each wrote a dissenting opinion. Each noted that in Griffin's ruling he stated that he reached his decision after reviewing all of the motions and briefs and considering all of the arguments.

Brown wrote in his dissenting opinion that the court had once more contributed to a "Serbonian Bog of formalistic procedures and traps."

"In my judgment, it is the obligation of this court to facilitate trials through our procedures, not impede them," Brown wrote. "By requiring additional magic words from the circuit judge, which would amount to surplusage in light of the judge's clear decision, and by discounting his actions, this court has endorsed a trap for the unwary in the practice of law."